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Court should strike down bans on same-sex unions

The smart money says that the U.S. Supreme Court will strike down key portions of the federal Defense of Marriage Act. That’s certainly what the justices seemed to be signaling Wednesday on the second day of hearing arguments on the issue of same-sex marriage. But striking down the 1996 federal law that recognizes only the marriage of opposite-sex couples for more than 1,000 federal laws and programs is the least the court should do. If the justices really want to accord equal treatment under the law to all Americans, they also should strike down state bans on same-sex unions, just as the court struck down state bans on interracial marriage in the 1960s.

The court heard two cases on the issue this week. The first, on Tuesday, was a challenge to California’s ban on same-sex marriage. Forty-one other states have a similar ban. On Wednesday, the court heard arguments on the federal law. Even many conservatives, including Gov. Scott Walker, no supporter of same-sex marriage, maintain that the federal government should leave marriage to the states. “In general, my preference is that things are left to the states and not dictated by the federal government. And that’s across the board,” Walker said Wednesday.

At Wednesday’s hearing in Washington, D.C., Justice Anthony Kennedy, considered the key swing vote on the issue, said the federal act appears to intrude on the power of states that have chosen to recognize same-sex marriages. When so many federal statutes are affected, he added, “which in our society means that the federal government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.”

Kennedy and Walker are both right. The federal government should not be interfering in such an intrusive way on the states’ power. But that doesn’t quite go far enough. For their part, states should not be denying same-sex couples the rights and privileges that opposite-sex couples have.

On the issue of the state bans, the justices seemed much softer. The smart money there has them looking for a way out of a ruling that would endorse same-sex marriage.

But there is no good legal argument that would allow them to do that. Perhaps the answer is to have government issue civil union licenses to all couples and let churches handle “marriages.” But whatever the answer, simple fairness demands that all couples be treated equally under the law.

The idea that the institution of marriage is damaged by allowing same-sex couples to marry or form civil unions doesn’t wash. Marriage is much more damaged by a high divorce rate, an unwillingness to commit to marriage by many heterosexual couples and by the large number of single parents.

Fix those issues, and then maybe marriage can be restored to its traditional place among the nation’s institutions. But it should still include committed same-sex couples. There is no difference in the commitment that loving couples make, whether they are same-sex or opposite sex.

And the idea that marriage in modern culture should be limited to people of opposite sexes because they can procreate is absurd. As Justice Elena Kagan suggested, that would mean the state to be consistent would have to deny marriage licenses to people over 55. They’re not going to have kids, and there are many younger couples who choose not to have children or who are infertile. No one seriously argues that couples who want to marry should be required to demonstrate an ability to procreate and be willing to do so. The nation is ahead of the court on this issue. Although same-sex bans were passed in a number of states in recent years, the tide has shifted. Polls show an increasing willingness to accept same-sex couples and grant them the rights of other couples. At the very least, the vote would be much closer than it was in 2006.

As with civil rights issues in the 1950s and ’60s, the Supreme Court has an opportunity this spring to broaden the freedoms accorded to all Americans. It should not hesitate to do so.

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